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Lowe v. Burlington Stores, Inc.

United States District Court, N.D. Texas, Dallas Division

March 7, 2017

SHERRI R. LOWE, Plaintiff,



         Pursuant to 28 U.S.C. § 636(b), the district court referred this case to the United States Magistrate Judge for pretrial management. See Standing Order of Reference, ECF No. 18. Before the Court is Defendant Burlington Stores, Inc.'s Partial Motion to Dismiss [ECF No. 7]. For the following reasons, the district court should GRANT Defendant's motion and dismiss this action with prejudice.


         Sherri R. Lowe (“Plaintiff”) brings this suit against Burlington Stores, Inc. (“Defendant”) for an accident occurring at one of Defendant's stores in Dallas, Texas. Compl. 1, ECF No. 3. On May 7, 2016, Plaintiff alleges that she went shopping with her mother at Defendant's business. Id. at ¶ 4. Plaintiff alleges that she reached up to grab a pair of shoes off of a shelf and a shoe fell, injuring her left foot. Id. Plaintiff brings ten causes of action against Defendant including: (1) negligence; (2) products liability; (3) breach of implied warranty; (4) breach of express warranty; (5) breach of contract; (6) battery; (7) assault; (8) res ipsa loquitur; (9) violations of the Deceptive Trade Practices Act §§ 17.41-17.63; and (10) vicarious liability. Id. at 2 ¶ 9-6 ¶ 37. Plaintiff requests damages exceeding $250, 000.00. Id. at 7. Plaintiff also requests for punitive and mental anguish damages. Id. at 6-7. Defendant moves to partially dismiss Plaintiff's Complaint under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) for failure to state a claim. Def.'s Mot. to Dismiss, ECF No. 7; Fed.R.Civ.P. 12(b)(6). Plaintiff untimely filed her response to Defendant's motion on December 23, 2016. Pl.'s Resp., ECF No. 19.[1] Defendant did not file a reply and the time to do so has passed. See Docket. This matter is ripe for determination.[2]

         Legal Standard

         Under Rule 12(b)(6), the Court may dismiss a complaint that fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). In analyzing a motion to dismiss, the Court should accept “all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.” Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004) (internal quotations omitted). However, the factual allegations must support plausible cause of action and sufficiently to raise the right to relief above a speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Determining whether a complaint states a plausible claim for relief is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id., 556 U.S. at 679.


         Negligence [3]

         “Under Texas law, the elements of a negligence claim are: (1) a legal duty owed by one person to another; (2) breach of that duty; and (3) damages proximately caused by the breach.” Bowman v. CitiMortgage Inc., No. 3:14-CV-4036-B, 2015 WL 4867746, at *3 (N.D.Tex. Aug. 12, 2015) (Boyle, J.) (citing Nabors Drilling, USA, Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009); Lane v. Halliburton, 529 F.3d 548, 565 (5th Cir. 2008)).

         Plaintiff alleges Defendant owed Plaintiff a duty to exercise reasonably prudent and ordinary care in the displaying of the shoes. Compl. 2 ¶ 10, ECF No. 3. Plaintiff alleges that Defendant violated this duty through eleven different failures by Defendant. Id. at ¶ 10(A)-(J).

         The Court determines that Plaintiff has failed to state an actionable claim for negligence. Plaintiff's Complaint fails to allege that Defendant owes Plaintiff a legal duty. Plaintiff also does not assert that she suffered any damages. Even upon the Court examining Plaintiff's medical records, it appears that Plaintiff did not suffer any damages in this case. See Compl. 10-11, ECF No. 3. Plaintiff also fails to allege facts showing that Defendant is the proximate cause of her alleged injuries. “Proximate cause requires both cause in fact and foreseeability.” D. Hous., Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002) (citing Farley v. M M Cattle Co., 529 S.W.2d 751, 755 (Tex. 1975)). “Foreseeability exists when ‘the actor as a person of ordinary intelligence should have anticipated the dangers his negligent act creates for others.'” Id. (citation omitted). Plaintiff's bare recital of the elements of a negligence claim and conclusory allegations are not enough to survive a Rule 12(b)(6) challenge.[4] The Court raises sua sponte that the district court should dismiss Plaintiff's claim for negligence pursuant to Rule 12(b)(6).[5]

         Products Liability

         “Chapter 82 of the Texas Civil Practice and Remedies Code (Product Liability Act) is written broadly to include any claim for personal injury caused by a defective product, whether the claim is based on strict liability, negligence, or misrepresentation.” Escalante v. Deere & Co., 3 F.Supp.3d 587, 589 (S.D.Tex. 2014) (citing Tex. Civ. Prac. & Rem. Code § 82.001(2)). “Under § 82.003 of the Product Liability Act, a seller that did not manufacture the product is only liable upon proof of one or more of seven distinct bases for liability.” Id.; see Tex. Civ. Prac. & Rem. Code § 82.003(a)(1)-(7).

         Plaintiff alleges that Defendant displayed the shoes in a manner rendering it defective, unsafe, and unreasonably dangerous. Compl. 3 ¶ 13, ECF No. 3. Plaintiff makes no other factual allegations or basis for her claim. Plaintiff does not set forth “more than labels and conclusions” in her products liability claim. Twombly, 550 U.S. at 555 (citation omitted). Plaintiff does not state any factual allegations of Defendant's liability under any of the seven areas of § 82.003(a). Tex. Civ. Prac. & Rem. Code § 82.003(a). These conclusory allegations are insufficient to state “a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. The district court should grant Defendant's Motion to Dismiss Plaintiff's products liability claim.

         Breach of Implied Warranty and Express Warranty

         “Successful assertion of breach of an express warranty requires: 1) an affirmation or promise made by the seller to the buyer; 2) that such affirmation or promise was part of the basis for the bargain, e.g. that the buyer relied on such affirmation or promise in making the purchase; 3) that the goods failed to comply with the affirmation or promise; 4) that there was financial injury; and 5) that the failure to comply was the proximate cause of the financial injury to the buyer.” Lindemann v. Eli Lilly & Co., 816 F.2d 199, 202 (5th Cir. 1987) (citation omitted). “Unlike an action for breach of an implied warranty which evolved from tort liability, an action for breach of an express warranty sounds in contract.” Id. (citation omitted). “Implied warranties are created by operation of law and are grounded more in tort than in contract.” Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 352 (Tex. 1987).

         Plaintiff alleges that Defendant breached both an implied warranty and express warranty that “it displayed the ‘shoes' in a good and workmanlike manner.” Compl. 3 ¶¶ 16, 19, ECF No. 3. However, Plaintiff fails to cite to any contract between her and Defendant for which to base an express warranty. Plaintiff also does not allege that Defendant made any promises or affirmations to Plaintiff. Plaintiff's breach of an express warranty fails. Therefore, the Court looks to if Plaintiff states a plausible claim for breach of an implied warranty.[6]

         Defendant argues that Texas recognizes implied warranties for: good and workmanlike construction, good and workmanlike performance of services, and merchantability. Def.'s Mot. 4-5, ECF No. 8. Plaintiff does not cite to any statute or case law in Texas supporting a claim for breach of an implied warranty for a “good and workmanlike manner.” Thus, the Court liberally construes Plaintiff's independent claims for breach of an implied warranty as: implied warranty of good and workmanlike performance of services; implied warranty of good and ...

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